SJFB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 146

FEDERAL COURT OF AUSTRALIA

SJFB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 146 SJFB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS S 434 OF 2003 SELWAY J 10 FEBRUARY 2004 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 434 OF 2003

BETWEEN: SJFB

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SELWAY J

DATE OF ORDER: 10 FEBRUARY 2004

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant to pay the costs of the first respondent. 3. No order for costs in relation to the second and third respondents. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 434 OF 2003

BETWEEN: SJFB

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SELWAY J

DATE: 10 FEBRUARY 2004

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 This application was made under s 39B of the Judiciary Act 1903 (Cth) seeking prohibition, certiorari, mandamus and/or an injunction in relation to a decision of the Refugee Review Tribunal ('the Tribunal') made on 28 August 2002. 2 The applicant is a citizen of Nepal. He arrived in Australia on 29 November 2001. He applied for a refugee visa on 27 December 2001. The basis of his claim was his fear of persecution if he returned to Nepal. He said that he had formerly been a police officer serving in country regions of Nepal. He said that he was at risk from Maoist insurgents in Nepal. He also said that he was at risk from the Nepalese police and army because he had left the police force. 3 In order to be granted a protection visa the applicant had to satisfy the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister') that the applicant had a well-founded fear of persecution for a Convention reason in this case by reason of his political beliefs. The application was considered by a delegate of the Minister who rejected it. The applicant sought a review from the Tribunal. The Tribunal found that the applicant did have a subjective fear of persecution, from Maoist insurgents. However, the Tribunal found that it was an option for the applicant to move to Kathmandu and that if he did so the chance was 'remote' that he would be subjected to convention-related persecution. 4 The Tribunal went on to hold that it was not satisfied that he was at continuing risk from either the police or the army. It concluded: 'I am satisfied that the risk is remote that the Applicant might be subjected to Convention‑related persecution by agents of the state in Nepal.' 5 In order to succeed in these proceedings the applicant must establish that there was a jurisdictional error in the process, reasoning or decision of the Tribunal. 6 The applicant's case was that in determining that the applicant could relocate to Kathmandu, the Tribunal made a jurisdictional error. For that purpose I was referred to the decision of the Full Court of this Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 ('Randhawa'). In that case the Court held that a person did not have a well-founded fear of persecution if that person could 'avail themselves of the real protection of their country of nationality elsewhere within that country' (at 441). A person who can relocate within his or her country of nationality will not have a well-founded fear of persecution, unless 'it is not reasonable in the circumstances to expect a person…to relocate to another part of the country of nationality' (at 443 - see also at 451). 7 It was submitted to me that the Tribunal had misapplied the relevant test. It seems clear enough that the Tribunal did apply the correct test. The Tribunal acknowledged that if the applicant returned to live in rural areas, he might well be at some risk. The Tribunal acknowledged, that the Maoist party was carrying on some activities in Kathmandu. It would appear there was some disagreement in some of the material referred to by the Tribunal as to the extent of those activities. Plainly enough, the Tribunal was aware of the issue. It dealt with the matter in this way: 'The fact that Maoist kill police officers, which I accept is borne out by the independent evidence about the high level of risk faced by police in isolated rural regions of the country. I have no doubt that serving in these rural areas is stressful and frightening for many police officers and accept that the Applicant, after several years of doing this, had and continues to have a strong subjective fear that he will be harmed by members of the CPN (Maoist). As to whether the Maoists still wish to harm the Applicant I am not satisfied that they are generally motivated to do so. The only occasion on which a threat was made to him in a manner which could be interpreted as personal was when he was still a serving police officer and a person who he believed to be a Maoist told his father to tell the Applicant to leave the force. The Applicant effectively complied by taking unauthorised leave and not returning to the police force after that. He does not claim, and there is no evidence before the Tribunal from which I might infer, that there were any further threats of this type in relation to him during the following months in which he continued to serve in the police force, nor any since. I infer from this that he was not a particularly important target for members of the CPN (Maoist). Further, he has complied with the demand which was made through his father and this may significantly lessen the risk to him even in his home town itself. However I accept that this is an area of Maoist activity in which another police officer was killed and that, if the Applicant were to return to his family home there, he may be an easy target for local Maoists and be at some risk of reprisals there arising from his actions against Maoists while in the police force. Nevertheless, because I am not satisfied the Maoists regard him with any greater hostility than they do any other member of the security forces (many other members of the security forces have participated in the ill-treatment and deaths of suspected Maoists, as is apparent from the reports of the U.S. State Department 2002 and BBC 2002 above), I am of the view that he could readily relocate to Kathmandu to avoid any localised threat. There are no reports before the Tribunal of Maoists attacking ex‑police officers in Kathmandu, and the independent evidence set out above indicates that the type of Maoist activity occurring there is taking the form of extortion of business-people or of causing general mayhem through bombings in public places. The Applicant himself did not refer to any incidents in Kathmandu in which ex‑police officers had been located and harmed by Maoists. I am satisfied, and find, that the chance is remote that the Applicant might be subjected to Convention-related persecution in Kathmandu if he were to settle there. The Applicant gave evidence that he is well-educated and that he would have no difficulty finding employment within Nepal outside the police service, if it were not for the harm he feared from various sources. Below I discuss his claims in relation to his fear of harm from the army and the police force. However I am satisfied that relocation to Kathmandu would be a reasonable option for the Applicant.' 8 It is plain that the Tribunal has addressed the very issue which the Full Court referred to in Randhawa. It discussed whether it was reasonable for the applicant to relocate in Kathmandu and whether he would have a well-founded fear of persecution if he did so. The submissions put to me fundamentally went to the proposition that the Tribunal had made a wrong factual finding in the conclusion that it reached. That was an issue within the jurisdiction of the Tribunal. This Court does not have jurisdiction to carry out some merit review of that decision. No jurisdictional error has been identified in that regard. 9 The amended application for an order of review also refers to breaches of natural justice where it is alleged that the Tribunal failed to afford to the applicant an opportunity to respond to the suggestion of relocating to Kathmandu. This issue was not pursued in oral submissions before me, but is dealt with in the written submissions. The short answer to it is that the Tribunal's decision does record that the Tribunal did put this very issue to the applicant. 'As to his fear of the Maoists, I put to him that he could settle safely in Kathmandu, which [is] reported to be safe from Maoists. He responded that the government would not protect him.' 10 It is clear that this further ground has no substance. 11 For these reasons the application must be dismissed. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.

Associate: Dated: 26 February 2004

Counsel for the Applicant: MW Clisby

Solicitor for the Applicant: MW Clisby

Counsel for the Respondent: K Treadrea

Solicitor for the Respondent: Sparke Helmore

Date of Hearing: 10 February 2004

Date of Judgment: 10 February 2004